United States v. Gunn

10-1170-cr United States v. Gunn UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 15th day of April, two thousand eleven. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 PIERRE N. LEVAL, 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 Appellee, 15 16 -v.- 10-1170-cr 17 18 RODERICK GUNN, also known as Tyrone 19 Coleman, 20 Defendant-Appellant. 21 - - - - - - - - - - - - - - - - - - - -X 22 23 FOR APPELLANT: Richard Palma, Law Office of Richard 24 Palma, New York, New York. 25 26 27 FOR APPELLEE: John J. O’Donnell, Assistant United 28 States Attorney (Harry A. Chernoff, 29 Assistant United States Attorney, on the 1 brief), for Preet Bharara, United States 2 Attorney for the Southern District of New 3 York. 4 5 Appeal from a judgment of conviction in the United 6 States District Court for the Southern District of New York 7 (Pauley, J.). 8 9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 10 AND DECREED that the judgment of the district court be 11 AFFIRMED. 12 13 Defendant-Appellant Roderick Gunn (“Gunn”) appeals on 14 multiple grounds his conviction and sentence for (1) 15 conspiring to commit robberies of narcotics dealers, in 16 violation of 18 U.S.C. § 1951; (2) committing a robbery of a 17 narcotics dealer, in violation of 18 U.S.C. §§ 1951, 1952; 18 (3) carrying and brandishing of firearms during and in 19 relation to the crimes of violence, in violation of 18 20 U.S.C. §§ 924(c)(1)(A)(ii) and (c)(2); (4) conspiring to 21 distribute marijuana, in violation of 21 U.S.C. § 846; and 22 (5, 6) two counts of illegal firearms possession, each in 23 violation of 18 U.S.C. § 922(g)(5). On December 19, 2003, 24 Gunn pleaded guilty to the above-listed counts pursuant to a 25 cooperation agreement; however, after the Government 26 discovered that Gunn had lied during his proffer sessions, 27 Gunn moved (twice) to withdraw his guilty plea. The 28 district court denied both of Gunn’s motions, and on March 29 17, 2010, the district court sentenced Gunn to an aggregate 30 term of 141 months’ imprisonment, followed by a term of five 31 years’ supervised release, and imposed a $600 mandatory 32 special assessment. 33 34 We assume the parties’ familiarity with the underlying 35 facts, the procedural history, and the issues presented for 36 review. 37 38 [1] Because Gunn raises for the first time on appeal his 39 challenge that the Hobbs Act and narcotics conspiracy 40 convictions lack a sufficient factual basis, we review for 41 plain error. Under plain error review, “an appellate court 42 may, in its discretion, correct an error not raised at trial 43 only where the appellant demonstrates that (1) there is an 44 ‘error’; (2) the error is ‘clear or obvious, rather than 2 1 subject to reasonable dispute’; (3) the error ‘affected the 2 appellant’s substantial rights, which in the ordinary case 3 means’ it ‘affected the outcome of the district court 4 proceedings’; and (4) ‘the error seriously affect[s] the 5 fairness, integrity or public reputation of judicial 6 proceedings.’” United States v. Marcus, 130 S. Ct. 2159, 7 2164 (2010) (quoting Puckett v. United States, 129 S. Ct. 8 1423, 1429 (2009)). To “affect substantial rights,” an 9 error must have been prejudicial and affected the outcome of 10 the district court proceedings. United States v. Olano, 507 11 U.S. 725, 734 (1993). 12 13 In Hobbs Act robbery conspiracy cases, the Government 14 must establish that the defendant agreed with others to 15 “obstruct, delay, or affect interstate commerce, by 16 unlawfully taking property ‘by means of actual or threatened 17 force, or violence, or fear of injury.’” United States v. 18 Santos, 449 F.3d 93, 97 (2d Cir. 2006) (quoting statutory 19 language of 18 U.S.C. § 1951(a)-(b)). The elements that the 20 Government must establish are the existence of a conspiracy 21 to commit a robbery that would have affected, or did affect, 22 interstate commerce, and the defendant’s knowing 23 participation in that conspiracy. Id. Where the charged 24 offense is a substantive Hobbs Act robbery, the Government 25 must prove that the defendant committed or attempted to 26 commit a robbery as described above, or aided and abetted 27 others in doing so. 28 29 The burden on the Government to establish the nexus to 30 interstate commerce is minimal. See United States v. Elias, 31 285 F.3d 183, 188 (2d Cir. 2002). “[I]f the defendant[’s] 32 conduct produces any interference with or effect upon 33 interstate commerce, whether slight, subtle, or even 34 potential, it is sufficient to uphold a prosecution under 35 the Hobbs Act.” United States v. Perrotta, 313 F.3d 33, 36 36 (2d Cir. 2002) (internal quotation marks omitted). Gunn 37 argues that the only factual basis for the conviction is 38 that he participated in a robbery of a narcotics dealer in 39 the Bronx. However, at the plea hearing, Gunn admitted that 40 he conspired with others “to assist them in robbing other 41 individuals of money and property in a fashion or manner 42 which impacted upon interstate commerce as that term has 43 been constructed by the courts.” Gunn’s admission is 44 sufficient to establish the de minimis effect on interstate 3 1 commerce necessary for Hobbs Act jurisdiction. See, e.g., 2 United States v. Needham, 604 F.3d 673, 680 (2d Cir. 2010) 3 (“[A]ll that need be shown is the possibility or potential 4 of an effect on interstate commerce, not an actual effect.” 5 (internal quotation marks omitted)). 6 7 The elements of a conspiracy to distribute or possess 8 with intent to distribute narcotics under 21 U.S.C. § 846 9 are “the existence of [such] a conspiracy and the 10 defendant’s willful joining it.” United States v. Story, 11 891 F.2d 988, 992 (2d Cir. 1989). In addition, where the 12 indictment charges an aggravated narcotics offense that 13 carries an enhanced penalty based on a particular drug type 14 and quantity pursuant to 21 U.S.C. § 841(b), “drug quantity 15 must be deemed an element.” United States v. Gonzalez, 420 16 F.3d 111, 129 (2d Cir. 2005). Gunn contends that the charge 17 did not satisfy an interstate commerce nexus; but there is 18 no requirement that the Government establish an interstate 19 commerce nexus in order to support a conviction for 20 narcotics conspiracy. In his plea allocution, Gunn admitted 21 that “during the time period of 2002, 2003, I conspired with 22 others to possess and distribute marijuana” and that “[o]n 23 two occasions during 2002 and 2003, I sold 16 pounds of 24 marijuana.” This was more than adequate to support his 25 conviction for conspiracy to distribute marijuana. 26 27 [2] We review the district court’s denial of a motion to 28 withdraw a guilty plea under an abuse of discretion 29 standard. United States v. Carreto, 583 F.3d 152, 157 (2d 30 Cir. 2009). A defendant must “show a fair and just reason 31 for requesting the withdrawal” of his guilty plea. Id. at 32 157 (internal quotation mark omitted). 33 34 Rule 11(d)(2)(B) provides that a “defendant may 35 withdraw a plea of guilty . . . after the court accepts the 36 plea, but before it imposes sentence if . . . the defendant 37 can show a fair and just reason for requesting the 38 withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “A defendant has 39 no absolute right to withdraw his plea of guilty.” United 40 States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994). “In 41 general, to determine whether the defendant has shown a 42 ‘fair and just reason’ to justify withdrawal, a district 43 court considers, inter alia: (1) whether the defendant has 44 asserted his or her legal innocence in the motion to 4 1 withdraw the guilty plea; (2) the amount of time that has 2 elapsed between the plea and the motion (the longer the 3 elapsed time, the less likely withdrawal would be fair and 4 just); and (3) whether the government would be prejudiced by 5 a withdrawal of the plea.” United States v. Schmidt, 373 6 F.3d 100, 102-03 (2d Cir. 2004). 7 8 Gunn has failed to show that his counsel’s assistance 9 was ineffective. See Strickland v. Washington, 466 U.S. 10 668, 688, 692 (1984) (holding that to establish ineffective 11 assistance of counsel, a defendant must satisfy a two-part 12 test: (1) counsel’s representation must fall “below an 13 objective standard of reasonableness . . . under prevailing 14 professional norms,” and (2) this deficiency must have 15 prejudiced his defense). “A court considering a claim of 16 ineffective assistance must apply a ‘strong presumption’ 17 that counsel’s representation was within the ‘wide range’ of 18 reasonable professional assistance” and “[t]he challenger’s 19 burden is to show ‘that counsel made errors so serious that 20 counsel was not functioning as the “counsel” guaranteed the 21 defendant by the Sixth Amendment.’” Harrington v. Richter, 22 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 23 687-89). To establish prejudice, the defendant must prove 24 that “there is a reasonable probability that, but for 25 counsel’s errors, he would not have pleaded guilty and would 26 have insisted on going to trial.” Hill v. Lockhart, 474 27 U.S. 52, 59 (1985). 28 29 As the district court properly recognized, prior to his 30 guilty plea, Gunn met with the Government for five proffer 31 sessions, and Gunn’s attorney was present at each meeting. 32 Moreover, during the Rule 11 colloquy, the district court 33 established that Gunn had “a full opportunity to discuss 34 [his] case [with his counsel] and to discuss the 35 consequences of entering a plea of guilty,” and that Gunn 36 was satisfied with his counsel’s representation. With these 37 statements, Gunn cannot overcome the heavy burden that his 38 plea was involuntary, nor can he demonstrate to this Court 39 that the district court abused its discretion in denying 40 Gunn’s motion. 41 42 [3] We review a district court’s sentencing decision for 43 reasonableness. See United States v. Booker, 543 U.S. 220, 44 260-62 (2005). Reasonableness has both procedural and 5 1 substantive dimensions. See United States v. 2 Avello-Alvarez, 430 F.3d 543, 545 (2d Cir. 2005) (citing 3 United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir. 4 2005)). See generally United States v. Cavera, 550 F.3d 5 180, 189-90 (2d Cir. 2008) (en banc), cert. denied, 129 S. 6 Ct. 2735 (2009) (citations omitted). 7 8 Gunn argues that the sentence is procedurally and 9 substantively erroneous because the court refused to credit 10 Gunn for his cooperation with the Government. However, the 11 district court considered Gunn’s request for leniency; both 12 parties submitted written memoranda on this subject; and it 13 was discussed at oral argument on two separate days. 14 Although the district court recognized that Gunn had 15 provided useful information to the Government, it was 16 “deeply troubled” that Gunn had withheld his commission of 17 some of his most serious past crimes, especially Gunn’s 18 involvement in a felony murder, additional robberies, and 19 cocaine distribution. The district court correctly 20 considered the need for Gunn’s sentence to “afford adequate 21 deterrence” to criminal conduct. 18 U.S.C. § 3553(a)(2)(B). 22 Thus, the district court properly concluded that Gunn’s 23 untruthfulness outweighed his failed efforts at cooperation. 24 Accordingly, the sentence imposed (which was at the low end 25 of the Guideline range) was substantively reasonable under 26 this Court’s jurisprudence. 27 28 We have considered Gunn’s remaining arguments and find 29 them to be without merit. For the foregoing reasons, the 30 judgment of conviction is AFFIRMED. 31 32 33 34 FOR THE COURT: 35 CATHERINE O’HAGAN WOLFE, CLERK 36 37 6